Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted; also appearing, Arthur Walsh, deputy city attorney; John S. Schuster, Esquire, and Thomas J. Nolan, Esquire, on behalf of Gretchen Stockdale.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(A conference was held in chambers, not reported.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Scheck, Mr. Neufeld. The People are represented by Mr. Harmon and Miss Clark. The jury is not present. We previously had scheduled a hearing with the Los Angeles city attorney regarding certain records held by the Los Angeles Police Department Internal Affairs Division. And I have conferred with counsel in chambers and we have agreed to complete the testimony of Professor Terence Speed before we proceed to that argument to allow Mr. Uelmen to be here for purposes of that argument. Is that correct, Mr. Cochran?

MR. COCHRAN: Yes, your Honor, that's correct.

THE COURT: Miss Clark?

MS. CLARK: Yes, your Honor.

THE COURT: All right. Anything else before we resume with Dr. Speed?

MS. CLARK: Yes. Very briefly. Mr. Kelberg will be down to address the Court concerning the matter of the further discovery. Dr. Baden and Wolf were both here during the testimony of Dr. Lakshmanan and took copious notes that we observed. In the package of discovery that was just delivered to us last night, there was nothing like that and so we are asking for the Court to require that those notes be turned over to us.

THE COURT: All right. Well, we will take that up when Mr. Kelberg joins us.

MS. CLARK: Thank you, your Honor.

THE COURT: All right. Thank you.

MR. SHAPIRO: We are going to object strenuously. That is not discoverable. That is clearly work product.

THE COURT: Well, we will get to that when we get to that. All right. Deputy Magnera, let's have the jurors, please.

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. And the record should reflect that we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.

THE JURY: Good morning.

THE COURT: And Professor Speed, would you resume the witness stand, please.

Terence Speed, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:

THE COURT: All right. Let the record reflect that Professor Terence Speed is again on the witness stand now to undergo cross-examination by Mr. Harmon. And Professor Speed, good morning.

PROF. SPEED: Good morning, sir.

THE COURT: Sir, you are reminded that you are still under oath. And Mr. Harmon, you may commence with your cross-examination.

MR. HARMON: Thank you, your Honor. Good morning, ladies and gentlemen.

THE JURY: Good morning.

CROSS-EXAMINATION BY MR. HARMON

MR. HARMON: Professor Speed, it is true, is it not, that you have never written an article relying on any aspect of the NRC report?

PROF. SPEED: That is true.

MR. HARMON: It is true, it is the not, that you have never given any lecture relying on any aspect of the NRC report?

PROF. SPEED: Not a very public lecture. I have given talks at UC Berkeley on this topic in which I have made references to the report.

MR. HARMON: Okay. Professor, I have asked you whether or not you have given a lecture which relied on any aspect of the NRC report. Have you?

PROF. SPEED: Yes.

MR. HARMON: And you have relied on it?

PROF. SPEED: I'm sorry, if--relied in the sense of quoting it and using it as any source of information? Yes.

MR. HARMON: And basing your opinion on it?

PROF. SPEED: Yes.

MR. HARMON: Will you describe the relationship of the national research council to the national academy of sciences.

PROF. SPEED: Well, as I understand it, the national research council is a separate body funded by the United States government to produce reports and I think hold symposia and it is--it has some affiliation to the national academy of sciences, but it is formally a separate organization. I think the national academy of sciences plays a fairly important role in the selection of topics and the management of the NRC, but as I say, I think they are separate bodies. That is my understanding.

MR. HARMON: And the national academy of science in this country represents the elite in various fields of science; is that true?

PROF. SPEED: That is certainly true.

MR. HARMON: The national research council, the body that you mentioned, do those members also represent the elite in specific areas?

PROF. SPEED: Well, certainly, yes.

MR. HARMON: Would you agree that the members of the committee that produced the report that you've quoted, "DNA technology in forensic science," that those members are elite?

PROF. SPEED: I would agree with that.

MR. HARMON: Would you agree that they are eminent.

PROF. SPEED: These words have different meanings to different people, but I think it is fair to say that each of them are eminent in their own field, but I am not really in a position to Judge everybody because they are not all in my field, but I think that is a reasonable understanding that that would be the case.

MR. HARMON: They are eminent?

PROF. SPEED: Yeah.

MR. HARMON: Victor McKusick, the chairman of the committee for technology in forensic science, do you know who he is?

PROF. SPEED: I certainly know he is and there is no doubt it he is eminent?

PROF. SPEED: Quite eminent.

MR. HARMON: What other members of the committee or association are you familiar with?

PROF. SPEED: I certainly know Professor Mary-Claire King who up until very recently was a member of my own university, Professor David Kay from the University of Arizona. May I look at the list?

MR. HARMON: Are you mistaken that David Kay is on the first NRC committee?

PROF. SPEED: Perhaps I am. Perhaps I am.

MR. HARMON: Sure. Those are the ones that you can recall right now?

PROF. SPEED: I have a suspicion there is more. Certainly Eric Lander, Professor Eric Lander, Whitehead Institute, I know him very well.

MR. HARMON: George Sensabaugh?

PROF. SPEED: Yeah, colleague at the University of California Berkeley. I know him well.

MR. HARMON: Okay. Why don't you look at the list.

PROF. SPEED: May I?

MR. HARMON: And tell us which other members you know well.

PROF. SPEED: (Witness complies.) I have met Mr. Henry Lee. Know well would not be a correct description. I have met Dr. Thomas Marr on numerous occasions and know well in a professional sense. And that would be about it. I have certainly read writings by a number of the other authors, but I think I have mentioned all of the people that I have personal acquaintance with.

MR. HARMON: Of the people that you have--or the members with which you are personally and professionally acquainted, you consider them to be eminent, do you not?

PROF. SPEED: Yes, yes.

MR. HARMON: No shortcomings in their field?

PROF. SPEED: Everybody has shortcomings. I mean, eminent is kind of a blanket word. That doesn't mean somebody is perfect, so eminent is just something that people have--you know, a description that people have when they are senior and experienced, so I don't think it would be fair to say that it implies they have no shortcomings.

MR. HARMON: Did you yourself make any contradictions to the first report by the committee on DNA technology?

PROF. SPEED: No, I did not.

MR. HARMON: None whatsoever?

PROF. SPEED: No.

MR. HARMON: You first became aware of these issues I believe you mentioned at a meeting at USC in 1990?

PROF. SPEED: That's correct.

MR. HARMON: Do you recall me being there, too?

PROF. SPEED: I don't actually, I'm sorry.

MR. HARMON: Have you yourself made any contradictions to the new committee that is in progress of writing a report?

PROF. SPEED: I have.

MR. HARMON: What have the nature of those contributions been?

PROF. SPEED: I contributed to a letter by Professor Joel Cohen from the Rockefeller University which addressed the issue of proficiency testing to estimate error rates.

MR. HARMON: Would you agree that the report is considered on some level as a consensus report from the respective members?

PROF. SPEED: Yes, I would agree with that.

MR. HARMON: Now, Professor, would you agree that--or do you feel that--and this is talking about this report, (Indicating), that it amazed you how its assumptions escaped the notice of all the eminent people on the NRC panel, and then in parentheses "Sarcasm intended"?

PROF. SPEED: That does sound like a quotation from something I have written.

MR. HARMON: And do you feel that way?

PROF. SPEED: On the specific issue that I was speaking of, yes.

MR. HARMON: So you don't feel that those people were eminent in certain aspects of their report?

PROF. SPEED: Well, I've already said that I don't regard eminent as implying infallibility. Eminent people can make mistakes.

MR. HARMON: Who chose the quotations that Mr. Neufeld flashed up here for the jury yesterday.

MR. NEUFELD: Objection.

PROF. SPEED: Well, he had some of them, but in fact every single one of them I have indicated in my copy already has things that I agree with very strongly and would like to see come about.

MR. HARMON: When you say "He," Mr. Neufeld?

PROF. SPEED: Yes, I'm sorry. Mr. Neufeld was aware of some of them; not all of them, but they are all ones that I had, in advance of discussing the matter with him, singled out as important.

MR. HARMON: Okay. Now, the quote that I just read to you, and I will give you a chance to show it to you--I want to show it to counsel first--this quote is actually from a letter you wrote to Professor Weir, isn't it?

PROF. SPEED: Umm--

MR. NEUFELD: Your Honor, may we approach for a second, please?

THE COURT: Yes. With the court reporter, please.

(The following proceedings were held at the bench:)

THE COURT: All right. We are at the side bar.

MR. NEUFELD: I just want to note for the record that before we started to cross-examine the witness today I approached Mr. Harmon and I said, "Are there any exhibits or documents that you intend use for impeachment purposes with this witness?" And he said, "No, there are none." That is what he said to me off the record before we began today. And for the first time in the middle of the examination he is producing this letter and that violates your discovery order that all exhibits you attempt to use are to be shown to opposing counsel prior to the commencement of their testimony, be it direct or be it cross.

THE COURT: All right.

MR. NEUFELD: I haven't even read this letter yet, so I would object initially because of the discovery violation from--to referring to it or doing anything on it because he did fail to show me it before we started today when I specifically asked him if there is anything.

THE COURT: All right. Mr. Harmon, what is this?

MR. HARMON: Well, we have to distinguish between exhibits--what is the difference between this and a transcript, your Honor? I fail to see the difference.

THE COURT: Listen to my question carefully.

MR. HARMON: I'm sorry.

THE COURT: What is this?

MR. HARMON: This is a letter that the good professor wrote to Bruce Weir. I mean, he exploited this yesterday when he said, "Bruce solicited my input on paper I was writing one day," so this is Professor Speed's critique of Professor Weir's paper that ultimately got published. And I'm shocked to hear that they had no idea that they had never seen this before.

MR. NEUFELD: I'm just saying I haven't seen it, but that is not the point. The point is he should have shown me this before we started.

THE COURT: This is a statement by this witness. This is more in the line of direct impeachment.

MR. NEUFELD: I need five minutes to read it.

THE COURT: All right. Read it.

(The following proceedings were held in open court:)

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. NEUFELD: Your Honor, may we have a side bar again, please?

THE COURT: Proceed. Proceed.

MR. NEUFELD: Okay.

THE COURT: Do you have a copy of that?

MR. NEUFELD: No.

THE COURT: That is your only copy, Mr. Harmon?

MR. HARMON: Sure, absolutely.

THE COURT: Would you have Miss Carswell make a copy of this, please.

MR. HARMON: No, I have got a copy.

THE COURT: All right. We have got a copy. Proceed.

MR. NEUFELD: Thank you.

MR. HARMON: Your Honor, may this be marked as People's next in order, your Honor?

THE CLERK: 577.

THE COURT: 577.

(Peo's 577 for id = document)

MR. HARMON: Professor Speed, I would like you to look at People's 577 for identification. Is that the letter that you were referring to when you mentioned yesterday that Professor Weir solicited your input on an article he was writing?

PROF. SPEED: Yes, that is the letter.

MR. HARMON: Are those your comments, or many of them, with respect to different areas of the article he had given to you?

PROF. SPEED: Yes.

MR. HARMON: Okay. And did I accurately read the--

PROF. SPEED: Could you remind me what section it is in?

MR. HARMON: Sure. It is on the last page, your item no. 11 on the third page.

PROF. SPEED: Yes.

MR. HARMON: Okay. Could we put the third page of 577 up on the elmo, your Honor?

MR. NEUFELD: Your Honor, objection.

THE COURT: May I see it, please?

(Brief pause.)

THE COURT: All right. Let me see counsel at the side bar.

(The following proceedings were held at the bench:)

THE COURT: All right. We are over at the side bar. Peter, what is your objection?

MR. NEUFELD: Your Honor, first of all, the reason I asked for side bar before is now that I see the context in which Dr. Speed--look at paragraph--11 made the remark about assumptions in the report, it had nothing to do with what they wrote about error rates. It had to do with their discussion of the ceiling principle and the ceiling principal is completely beyond the scope of this man's direct. I have been extremely careful not to get into ceiling principle, substructures or any of those issues at all. This entire letter--

THE COURT: Isn't the point here that he is making fun of the staff of the scholar who put together the report?

MR. NEUFELD: He is not making fun. What he is saying is, "It amazed me that assumptions escaped the notice of all the eminent people in the NRC panel." But the assumption is not an assumption at all having to do with his testimony as to error rates and the statistics involving error rates. It has to do with a completely separate issue--this was brought up in the Frye hearing--the ceiling principal, the product rule. He has not offered any testimony on the ceiling principle. That is different. The paragraph is simply limited to the committee's dealing with the ceiling principle and what is going to happen here is two problems; a 356 issue about completeness, and more importantly, we are going to have a 352 problem because we are going to get into the ceiling issue. We will get into all the issues about the ceiling principle and the product rule. You are talking about days of extra testimony and other witnesses and Professor Quinn coming in to testify about substructure and the like. It is absurd. This--

THE COURT: You mean that comment brings all of that into play?

MR. HARMON: I hope not.

MR. NEUFELD: It brings in the ceiling principle and the product rule and the statement, "It amazed me about its assumptions" is clearly referring to the way the NRC committee handled the issue of the product rule and the ceiling principle. It is clearly referring to that. It is not referring to anything at all--it is not referring to anything at all that he has testified to. It would be as if, let's say, he criticized the NRC report. For a statistician, I understand that, but he is saying he was a scientist who says--criticizes the NRC for their assumptions about the role of lawyers or something.

THE COURT: All right. Mr. Harmon.

MR. HARMON: Thanks, your Honor. Nice to get to say something. It is criticizing the people and here is the point. All those flashy quotes yesterday, half of them are from section 3 or chapter 3 and that is from this chapter. He is criticizing the people that wrote chapter 3. And I am entitled to elicit names, and the reality is there are two people who he thinks very highly of; Mary-Claire King and Eric Lander, so at least in terms of how he feels about those people and their product, which is chapter 3, I think I'm entitled to--I mean, I've already elicited--I just want to put it there and ask him a few more questions.

MR. NEUFELD: First of all, there is no testimony that those people wrote chapter 3. The lawyers already elicited that it is a consensus of opinion from the NRC committee people. There is no testimony that this chapter was written by one person or two people or three people. It is a completely unrelated point.

MR. HARMON: Can I just say something?

THE COURT: We've heard enough. This is a big tempest in a teapot here.

MR. HARMON: It is.

THE COURT: Mr. Harmon, I'm going to preclude you from putting this up on the elmo because it is just one sentence--

MR. HARMON: Uh-huh.

THE COURT: --out of a long letter. You may use the sentence, "It amazed me how its assumptions" referring to that particular chapter of the NRC report.

MR. HARMON: I can do that.

MR. NEUFELD: I wouldn't say chapter. He can say ceiling principles, ask him about that.

THE COURT: If you get into ceiling principles you open up all the problems. That is my suggestion. Don't go away.

(Brief pause.)

THE COURT: Okay.

MR. NEUFELD: The only thing I want to say is, your Honor, if you want to let him ask a question about assumptions, I would then say that the remarks should be limited to assumptions about the method for calculating that frequency so you don't write out the words "Ceiling principle."

THE COURT: This is a comment regarding the people who did the report and their, quote, eminence or non-eminence. All right. That is what it is restricted to.

MR. NEUFELD: Okay.

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. Proceed.

MR. HARMON: Professor Speed, yesterday a series of quotes from the NRC report that I've just asked you about were flashed up on the screen and you were asked whether or not you agreed with them. Do you recall that?

PROF. SPEED: I do.

MR. HARMON: And approximately half of those comments were from chapter 3 of the report "DNA technology in forensic science," were they not?

PROF. SPEED: Well, if you would like me to check.

MR. HARMON: Would you like to check that?

PROF. SPEED: I will.

MR. HARMON: Okay. Starts on page 74.

PROF. SPEED: Uh-huh.

MR. HARMON: Through 96.

PROF. SPEED: That seems about right, yes.

MR. HARMON: Okay. And chapter 3 was the source or the area that you made your comment in the letter to Bruce Weir that is dated September 29, 1992, was it not?

PROF. SPEED: That is correct.

MR. HARMON: Okay. And the areas from which quotes were elicited yesterday had to do with laboratory error rate; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: Now, when you wrote this letter to Professor Weir in September of 1992, when you said, quote, "It amazed me how its assumptions escaped the notice of all the eminent people on the NRC panel," parentheses "Sarcasm intended," end parenthesis, you were criticizing the people, whoever they were, that produced part of chapter 3, were you not?

MR. NEUFELD: Objection. I would just ask that he have a chance to look at the letter before he answer the question.

THE COURT: Yes.

MR. HARMON: Would you like to look at the letter again, exhibit 577?

MR. NEUFELD: Mr. Harmon, hold on.

THE COURT: It has been pointed out to him already.

MR. NEUFELD: Sorry.

PROF. SPEED: May I point out that the assumptions I pointed out referred to the so-called ceiling principle.

MR. HARMON: And the eminent people that you pointed out with sarcasm intended were the eminent people in chapter 3, weren't they?

PROF. SPEED: Yes.

MR. HARMON: Who were they?

PROF. SPEED: We just discussed the names of the people I know. Do you want me to go through the list of names again?

MR. HARMON: Did you ever discuss chapter 3 with Mary-Claire King?

PROF. SPEED: No, I did not.

MR. HARMON: Did you discuss it with Eric Lander?

PROF. SPEED: No.

MR. HARMON: Now, Professor Weir, the first case that you became involved--

THE COURT: Speed.

MR. NEUFELD: Objection.

MR. HARMON: I'm sorry. Professor Speed, the first case that you became involved in was a capital case in San Francisco, People versus Briggs; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: And what year did you first become involved in that case?

PROF. SPEED: I believe it was 1992.

MR. HARMON: That was a capital case, wasn't it?

PROF. SPEED: I believe so, yes.

MR. HARMON: Okay. You have some extreme views about capital punishment or death penalty in the United States, don't you?

MR. NEUFELD: Objection, irrelevant.

THE COURT: Sustained.

MR. HARMON: May we approach on that, your Honor?

THE COURT: No.

MR. HARMON: What was the other case you became involved in? You mentioned two cases yesterday.

PROF. SPEED: It was a case with Contra Costa County and I believe the Defendant's name was Robert Taylor.

MR. HARMON: Okay. Did you ever testify in that case?

PROF. SPEED: No.

MR. HARMON: Your CV lists 120 articles and chapters, does it not?

PROF. SPEED: Yes, it does.

MR. HARMON: None deal directly with the application of statistics in forensic settings, do they?

PROF. SPEED: That is correct.

MR. HARMON: Do you have a copy of your CV in front of you?

PROF. SPEED: I do.

MR. HARMON: I would like you to refer to the item that is numbered 111 on your CV, if you would.

PROF. SPEED: Yes.

MR. HARMON: Okay. Would you tell the ladies and gentlemen of the jury what the role of statistics plays in that article?

PROF. SPEED: I was assisting in the analysis of data that had been collected for a study on aids, so statistics was involved in the analysis of the data.

MR. HARMON: In what way?

PROF. SPEED: Well, it was a group of male homosexuals, some of whom were HIV positive at one time and not at a previous time, some of whom were HIV negative throughout the entire period, and there was--this group of male homosexuals were cross-classified according to various sexual practices that they had admitted indulging in or that had taken place or that they had been involved in over the period that would have related to when they might have gone from being HIV negative to HIV positive, if that was that group, or when they remained HIV negative throughout the entire period, if that was the other group.

MR. HARMON: And in what way does your--or does your contribution to that article demonstrate any connection between HIV and aids?

MR. NEUFELD: Objection, irrelevant.

THE COURT: Sustained.

MR. HARMON: It is true, is it not, that of the 120 articles and chapters, you have never expressed any concerns that you seem to have expressed yesterday about the role of forensic DNA typing in the legal system? Isn't that true?

PROF. SPEED: I have not written any papers in this list about that topic, that is true.

MR. HARMON: About what you talked about yesterday?

PROF. SPEED: That is correct.

MR. HARMON: Okay.

PROF. SPEED: In papers. As I said earlier, I expressed these views in a letter to the second NRC report on this same topic.

MR. HARMON: You mentioned that you have previously served on editorial boards, have you not?

PROF. SPEED: That is correct.

MR. HARMON: Would you briefly describe the role of an editor and the responsibilities that are attendant to that role.

PROF. SPEED: Well, I've mainly been associate editor, not the top editor, so the associate editor's role is usually to look at papers as they come in, as they are submitted for publication, and choose referees, people who will review the papers, get the reports from the referees, synthesize them into an overall report on the paper, which is then transmitted to the editor with a recommendation for the treatment of that paper.

MR. HARMON: And do you take that role very seriously?

PROF. SPEED: Of course.

MR. HARMON: Why is that?

PROF. SPEED: It is one of my professional responsibilities.

MR. HARMON: And what would happen if something fell through the cracks, a published article fell through the cracks without your careful review?

PROF. SPEED: I don't understand what you mean by "Fall through the cracks."

MR. HARMON: Sure. If you hadn't carefully reviewed something and then an article emerged in the peer review literature with your name on it as an editor.

PROF. SPEED: Well, usually articles don't appear in the literature that I am associated with with my name on it as editor, but I'm afraid I still don't understand what you mean.

MR. HARMON: Okay. If you were not careful in your review of an article and the article were published, what are the consequences of the implications of an article with faulty scientific data in it appearing in the peer review literature?

PROF. SPEED: Well, usually if an article appears in the peer review literature, it is regarded as the responsibility of the author. The editors may be unhappy that they let it slip through, but ultimately authors are responsible for their publications. And if there are errors, that responsibility goes home to the person that made those errors, though it may cast some doubt on the quality of the reviewing process.

MR. HARMON: When were you first contacted to be associated with the Defense in this case?

PROF. SPEED: September, 1994.

MR. HARMON: And when did you first meet with any Defense counsel in this case?

PROF. SPEED: I think a month or two after that they visited Berkeley and we talked.

MR. HARMON: Who did you meet with?

PROF. SPEED: Mr. Scheck and Mr. Neufeld made the initial visit to Berkeley to talk with me.

MR. HARMON: And did you take any notes of this event?

PROF. SPEED: No.

MR. HARMON: And when was the next time that you met with the Defense in this case?

PROF. SPEED: Umm, I think about April this year, either I was briefly in Los Angeles or--not Mr. Scheck on this occasion--Mr. Neufeld came to Berkeley. Those two communications occurred rather close together. One of them was when I was here and another was when Mr. Scheck--excuse me--Mr. Neufeld and Mr. Thompson came to Berkeley.

MR. HARMON: Did you do any work whatsoever between September and April on this case?

PROF. SPEED: I did lots of work, yes. Work in the sense of reading and thinking and so on.

MR. HARMON: Okay. Are those things that you would have done regardless of this case?

PROF. SPEED: This case has given me an opportunity to get much more deeply into the issues than I might have otherwise, there is no doubt about that, so I couldn't say that I would have done it had the case not been around, no.

MR. HARMON: Now, you wrote no report?

PROF. SPEED: (No audible response.)

MR. HARMON: Is that true?

PROF. SPEED: That is correct.

MR. HARMON: You made no notes of any of the sessions that you had with Defense counsel in this case; is that true?

PROF. SPEED: I have written things. They are not notes of sessions and they are not reports, but I have written brief memos way, way back last--before Christmas.

MR. HARMON: What do those memos consist of?

PROF. SPEED: Well, they were being prepared at the time I thought I was being involved in a Kelly-Frye hearing, and I prepared rather small number of notes on what I considered important issues, the usual sort of thing, you know, the product rule, that--just two or three of the contentious areas which I think--well, you would be familiar with. If you would like me to enumerate them, I will try to remember.

MR. HARMON: That is okay. Now, you knew, before you testified yesterday, that I would be cross-examining you; is that true?

PROF. SPEED: Not really, no.

MR. HARMON: Did you receive a letter from me?

PROF. SPEED: You mean in the last two weeks?

MR. HARMON: Uh-huh.

PROF. SPEED: Yes.

MR. HARMON: Did you receive two letters from me?

PROF. SPEED: I did.

MR. HARMON: And the first letter I asked for an opportunity to meet with you about your views; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: And I had advised you that I had no idea what you were going to testify about; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: And I would like--I wanted an opportunity to sit down and talk with you ahead of time; isn't that true?

PROF. SPEED: That is what you said in your fax.

MR. HARMON: Did you believe that?

PROF. SPEED: Oh, I believed it.

MR. HARMON: That I wanted to find out what you had to say?

PROF. SPEED: Yes.

MR. HARMON: Okay. And you were in town during that week, in this town?

PROF. SPEED: I was in this town.

MR. HARMON: Isn't that true? And you faxed me a cordial response declining the opportunity to talk to me; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: And then I faxed you a second letter; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: And describe the nature of your relationship with Professor Weir.

PROF. SPEED: Well, he is obviously a professional colleague who works in the area of statistics and genetics and that is not a very large field, so we cross paths not terribly often, but from time to time. I regard him as a friend as well. I have visited him and stayed in his home in North Carolina.

MR. HARMON: So he is a personal friend?

PROF. SPEED: I wouldn't say a close personal friend, but definitely a personal friend.

MR. HARMON: Professionally you respect him?

PROF. SPEED: Certainly.

MR. HARMON: Disagree with him sometimes?

PROF. SPEED: Absolutely.

MR. HARMON: Okay. Now, in the second letter I propose that you discuss whatever you would testify about with Professor Weir, didn't I?

PROF. SPEED: You did.

MR. HARMON: And you never responded to that letter or acknowledged that letter; isn't that true?

PROF. SPEED: No, that is not.

MR. HARMON: You did?

PROF. SPEED: I did.

MR. HARMON: You responded to it?

PROF. SPEED: I responded.

MR. HARMON: And where did that response go to?

PROF. SPEED: It was faxed to the number you get when you ring the address that you had on your letter and just I brought a copy of the acknowledgment that the fax was sent to that place and went to the--

MR. HARMON: What did you say in your response?

PROF. SPEED: Could I perhaps look at a copy to remind me?

MR. HARMON: I never got it.

PROF. SPEED: I do have copies here.

MR. HARMON: Sure.

PROF. SPEED: Would it possible for me to ask Mr. Neufeld to give me a copy?

THE COURT: Sure.

(Brief pause.)

MR. NEUFELD: May I approach each person?

(Brief pause.)

PROF. SPEED: Shall I read my reply?

MR. HARMON: Sure.

PROF. SPEED: It went to the Los Angeles County District Attorney's office bureau of central operations special trials and that is the fax number I got when I phoned because the previous fax number didn't work for some reason. (Reading.) Dear Mr. Harmon: Thank you for your fax dated July 27, 1995, requesting that I discuss my anticipated testimony with Dr. Bruce Weir. With respect I decline. Yours sincerely, Terry Speed."

MR. HARMON: Now, knowing that you are a personal friend of Dr. Weir and knowing you have a professional respect for him, why did you decline to talk to him so that we might know what you would testify about in advance?

PROF. SPEED: Well, the reason was that I would have felt very uncomfortable because I know that my testimony would have been disagreeing publicly with positions he has held publicly, for example, reading out a quote that you heard me attest to that I disagreed with of Dr. Weir, that sort of thing. Honestly don't feel very comfortable chatting on the phone with a professional colleague just before I'm about to go into this sort of situation and disagree with him. I would have thought that is not a very unusual human reaction.

MR. HARMON: Now, this is the man who invited your comments on his review article, Professor Weir?

PROF. SPEED: Yes.

MR. HARMON: And you felt uncomfortable speaking to him 3000 miles away on the phone?

PROF. SPEED: Yes.

MR. HARMON: Okay. Now, you criticized yesterday Professor Weir's calculations for assuming that there was no error in the tests? Do you recall that?

PROF. SPEED: I'm sorry, I criticized--

MR. HARMON: You criticized Professor Weir's population frequency calculations simply because they assumed that there was no error in the testing methods. Do you recall that yesterday?

PROF. SPEED: May I clarify what I said?

MR. HARMON: Well, did you say that yesterday?

PROF. SPEED: No, I did not say that.

MR. HARMON: What did you say yesterday?

PROF. SPEED: I said that I thought the assumption is inappropriate in this context. I made no reference that I was aware of to the actual figures. I was criticizing the assumption, because it seems to me an improper assumption to make in this context when there clearly is a possibility of lab error and other kind of error, that anything predicated on the assumption there was not--seems to me to be suspect.

MR. HARMON: Now, your views on the role of assumptions in statistics are far from mainstream and you have found that many times with census adjustment reactor safety, haven't you?

MR. NEUFELD: Objection, irrelevant and argumentative.

THE COURT: Sustained. Rephrase the question.

MR. HARMON: Professor Speed, is it true that your views on the role of assumptions in statistics are far from mainstream?

MR. NEUFELD: Objection, vague as to assumptions and statistics.

THE COURT: Overruled.

PROF. SPEED: That is a correct statement that I put in my letter to Professor Weir, yes. I certainly feel that not enough attention is paid to the role of assumptions in doing statistical calculations and in particular evaluating probabilities, such as associated with nuclear reactors, evaluating probabilities such as those associated with incorrectly concluding that a given individual is the source of a stain. Assumptions are critical in my view, and that is why I said that.

MR. HARMON: And you admit that your views on assumptions are not mainstream, right?

PROF. SPEED: That is what I said in the letter.

MR. HARMON: Well, have they become mainstream since 1992?

PROF. SPEED: In this particular context I've become more convinced that I have broad support. I was prevented from mentioning names yesterday of many eminent statisticians who agree with me.

MR. HARMON: Well, I move to strike that.

THE COURT: It is nonresponsive. Reask the question.

PROF. SPEED: Could you repeat the question, please?

MR. HARMON: I will ask a question, professor. Let's go back to what Professor Weir did when he presented his population frequency calculations to this jury. Okay. How else could the jury appreciate the significance of a genetic match if they decided that no error was in fact performed?

PROF. SPEED: Well, in that case Professor Weir's calculations would probably be the most relevant thing.

MR. HARMON: And the quote from page 88 of the national research council report prohibits combining the population frequencies estimate and the laboratory error rate; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: Now, assumptions do play a role in all sorts of statistical endeavors, don't they?

PROF. SPEED: Of course, yes.

MR. HARMON: Let me give you an example. You know the kind of map, I think it is called a Mercator projection map that takes the world as a glove and flattens it out--I think that is the right term for it--

PROF. SPEED: Well, there are a number of such projections.

MR. HARMON: Okay. So if I said to you, Professor Speed, assume the earth was flat, as one of these maps represent, and I was in Chicago and I could walk westbound directly, you could tell me how long it would take me to fall off the edge, if I walked westbound at five miles an hour, couldn't you?

PROF. SPEED: Well, I think if it was made a little more precisely, I probably could. I'm not quite sure I'm following exactly.

MR. HARMON: Sure. And the assumption that is wrong is the earth, isn't flat?

PROF. SPEED: Yes, that is--

MR. HARMON: But if I forced you to make that assumption, you could do that sort of calculation, couldn't you?

PROF. SPEED: I could, yes.

MR. HARMON: Can we see People's exhibit 564, the testing--

(Discussion held off the record between the Deputy District Attorneys.)

MR. HARMON: Now, you have not spent any time reviewing the Los Angeles Police Department files on this case, have you?

PROF. SPEED: I have spent a little time, but as you would know, that is outside my area of expertise, so I haven't made any attempt to master it completely.

MR. HARMON: But you were here for Dr. Gerdes' testimony?

PROF. SPEED: Yes.

MR. HARMON: Okay. And you heard him discuss the possibilities that cross-contamination might have occurred in various places?

PROF. SPEED: I did.

MR. HARMON: And were you here for the demonstration which showed on People's exhibit 564, which demonstrated the history of samples 48, 50 and 52, the replicate testing demonstration?

PROF. SPEED: May I consult my little crib sheet to see what those samples are?

MR. HARMON: Sure.

PROF. SPEED: (Witness complies.)

MR. NEUFELD: Your Honor--

THE COURT: Counsel, he gets to conduct his examination the way he want to.

PROF. SPEED: These are Bundy walk drops. I wasn't actually here for that, but I--

MR. HARMON: Now, you don't know whether any error actually occurred with the handling of those samples, do you?

PROF. SPEED: I certainly don't, no.

MR. HARMON: If you knew, if you were able to trace the history of those samples, you would be able to try to troubleshoot the likelihood that those samples might have gotten cross-contaminated, wouldn't you?

PROF. SPEED: Well, that wouldn't be my job; that would be a job for a microbiologist.

MR. HARMON: Well, you mentioned common mode failure yesterday. Do you recall that?

PROF. SPEED: I did, yes.

MR. HARMON: Common mode failure, somebody traced the electrical system to find out that all three of these systems were wired through the same box?

PROF. SPEED: They did that after the fire.

MR. HARMON: They did that after. Could you just define that common mode failure again, please.

PROF. SPEED: Well, it is used in a context where two or more systems can be--in the reliability context, can fail as a result of some common cause, even though it is usually used in a context where beyond that common cause they are actually operating independently, so that the only real common connection between them is this initial one.

MR. HARMON: It is a bottleneck they all go through?

PROF. SPEED: Well, you could say that.

MR. HARMON: One way of describing it?

PROF. SPEED: One way.

MR. HARMON: And do you know whether--have you evaluated the flow of samples in this case to determine whether there are bottlenecks or common comes in the handling of any of the samples?

PROF. SPEED: Well, I have looked at it closely enough to see the possibility, but as I say, evaluating them in a professional sense is outside my area of expertise.

MR. HARMON: In a statistical sense--

PROF. SPEED: Yes.

MR. HARMON: --you could?

PROF. SPEED: Well, when you know enough about a process to see that things which might initially be together, then get split and have an independent existence or an independent processing thereafter, when I have seen this situation often enough to know that that--the probabilities get reduced if there is consistency in the later analyses, but that the possibilities of some--in this case we are talking contamination occurring at the earliest stages before that was split--is an instance of this common mode that I've been talking about, so I have seen enough, without being an expert, to see the possibility.

MR. HARMON: What have you seen?

PROF. SPEED: Well, information about some of the, if you like, life histories of some of these samples.

MR. HARMON: Well, tell us about 48, 50 and 52 then.

PROF. SPEED: I'm afraid I don't have a detailed recollection of any of these. I have just seen enough to see the possibility.

MR. HARMON: Well, what have you seen that is enough to contradict the possibility of those samples suffered from common mode failure?

PROF. SPEED: Well, simply listen to Dr. Gerdes' testimony is enough to see the possibility of something happening at the beginning before things part ways. That is enough for me. I don't have to, at least from my point of view, to recognize this possibility, I don't have to read LAPD files or understand the testimony, as far as I'm concerned.

MR. HARMON: So let me get a clear idea what you heard of Dr. Gerdes' testimony. You heard his direct examination; is that true?

PROF. SPEED: Some of it.

MR. HARMON: Did he directly address whether common mode failure or anything analogous like that might have occurred with 48, 50 and 52 specifically?

PROF. SPEED: I don't recall that, but he may have. I don't claim to have followed every detail of the testimony.

MR. HARMON: But whatever he said was enough for you to recognize the possibility, is that what you are--

PROF. SPEED: I'm not making statements specific to items 49, 50 and 52. I was talking about processes in general. And I think I know enough about processes in general to see that there are initial phases where things might be together and then later phases where they are being treated independently, and that the behavior of errors and the overall probability of an inconsistency has to have that sort of temporal and spacial flow. That is about the level at which I'm testifying, not in detail about particular drops or particular samples.

MR. HARMON: So that temporal and spacial flow that you have perceived through Dr. Gerdes' testimony, that in fact does not relate to any specific item of evidence in this case, does it?

PROF. SPEED: No, it is not--I'm not standing up here testifying to probabilities relating to items of evidence specifically, no.

MR. HARMON: Could we see 564.

(Brief pause.)

THE COURT: Can you see that clearly, doctor?

PROF. SPEED: I will have to absorb it, but I can see it.

MR. HARMON: Sure.

MR. HARMON: Just get familiar with that. Are you familiar enough with what is shown there?

PROF. SPEED: If I can refer back to it if you ask me a question about it.

MR. HARMON: Sure, sure. I want you to assume that all three of those samples which you know are from the Bundy walkway were typed by the three different laboratories in this case, the Los Angeles Police Department, California Department of Justice DNA lab and Cellmark, and that they all produced the same DQ-Alpha results. Okay?

PROF. SPEED: Right.

MR. HARMON: And in your jargon, the common mode failure where these samples seem to have diverged would be on June 14th in the evidence processing room; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: And if those samples were all--all produced the same type, that suggests that if there was common mode failure it had to have happened on June 13th or June 14th?

MR. NEUFELD: I'm sorry, objection to the way he said 13th and then 13th or 14th and then ask him to rephrase the question.

THE COURT: Rephrase the question.

MR. HARMON: That if there was common mode failure it would have to have happened on June 14th when they were all together for the last time?

MR. NEUFELD: Objection. I think that misstates the evidence.

THE COURT: Overruled.

PROF. SPEED: I'm not making statements with that degree of specificity. In particular, it would seem to me I would need to be a microbiologist or somebody very knowledgeable in this to say when errors occurred. All I was talking--speaking to was the possibility of errors in that initial phase before they were split being analogous to common cause errors, and if you wanted to get the overall probability of the final consistent results being erroneous results, then you would have to consider that step in the process.

MR. HARMON: To put it--I'm sorry, go ahead.

PROF. SPEED: I'm certainly not saying that that is the only way in which an error could have affected all of them, but it is a way, as I think should be clear from the flow chart.

MR. HARMON: Well, if no error was made on June 14th in the sampling in the evidence processing room or on June 13th in the evidence processing room, then there is no reason to believe that the results produced by those three labs are incorrect; isn't that true?

PROF. SPEED: I can't agree with that statement.

MR. HARMON: What reason do you have to believe that based on the chronology of those samples?

PROF. SPEED: Again, I'm afraid I have to be general. You said there was no reason to believe. Nuclear reactors have done very bad things because people had no reason to believe that whatever mechanical function actually happened might have happened. In other words, the fact that you have no reason to believe it doesn't actually mean it is true. I'm not here testifying that it is impossible or that it is necessary that errors may or may not happen in some places. We are talking about probabilities, about chances of errors occurring, and they exist regardless of whether in any particular instance somebody may have no reason to believe they occurred. The chance of errors is something which is ever present in this sort of human activity.

MR. HARMON: You could walk out in the street and get hit by a car crossing the street, couldn't you?

PROF. SPEED: I believe that is a possibility.

MR. HARMON: Do you have a reason to believe that is going to happen?

MR. NEUFELD: Objection, irrelevant.

THE COURT: Sustained.

MR. HARMON: What significance do you attribute to the fact that given the flow of those samples each of the three labs produced the same result?

PROF. SPEED: Well, that suggests--but again this is an area of professional expertise beyond mine, because I speak to statistics and probability, whereas you are talking now about interpretation of results, but it would suggest that what went out was the same. I mean, an error calculation which only considered errors in the individual labs and there was a consistent result would suggest that they received the same thing. It would certainly tell you nothing about errors that might or might not have occurred before they were sent out.

MR. HARMON: Professor Speed, in fact there are many other biological samples in this case that did not go through the June 13th and June 14th, let's call it, common mode, aren't there?

MR. NEUFELD: Objection, beyond the scope and he has no expertise.

THE COURT: Sustained.

MR. HARMON: Professor Speed, you don't know whether or not there are many other biological samples that did not have the same history of sample 48, 50 and 52 on June 13th and 14th, do you?

MR. NEUFELD: Objection.

THE COURT: Overruled.

PROF. SPEED: May I just say that I was here when this was presented.

MR. HARMON: Objection, that is nonresponsive, your Honor.

THE COURT: Sustained. Reask the question.

MR. HARMON: Professor Speed, you do not know whether or not there are many other biological samples that did not go through the evidence processing room on June 13th and June 14th, do you?

PROF. SPEED: No, not in detail, no.

MR. HARMON: Do you recollect anything about samples 303, 304 and 305?

PROF. SPEED: I know what they are. I don't have an immediate recollection of their history, processing history.

MR. HARMON: Okay. Well, let's give you People's 565 and if you would--

THE COURT: Do you have a photo? It is hard to read from the monitor. Do you have an additional photocopy for Professor Speed?

MR. HARMON: I think so.

(Brief pause.)

THE COURT: Let me see if I can get you actually a hard copy.

PROF. SPEED: Thanks.

(Brief pause.)

THE COURT: It would be quicker if we just took that and photocopied. Mrs. Robertson, could we have a photocopy of that real quick, please.

(Brief pause.)

MR. HARMON: Showing you a copy of exhibit 565, did you see that the other day with Dr. Gerdes?

PROF. SPEED: Yes, I did.

MR. HARMON: And in fact those samples, if the dates are correct, have a totally different history than samples 48, 50 and 52, do they not?

PROF. SPEED: They certainly do.

MR. HARMON: And if they have a different history, then they share no common mode with 48, 50 and 52, do they?

PROF. SPEED: With those samples, certainly, it would appear not, yeah.

MR. HARMON: And would it be helpful in assessing whether a common mode failure occurred in trying to track the history of specific sample in this case?

PROF. SPEED: Yeah, I certainly believe so.

MR. HARMON: You didn't do that?

PROF. SPEED: I wasn't doing any analyses, as you know, of specific situations in this case.

MR. HARMON: Sure.

PROF. SPEED: I was speaking in general.

MR. HARMON: And did you say yesterday that Professor Weir rejects the notion of error rate?

PROF. SPEED: I believe I said yes, to a quote from his testimony.

MR. HARMON: Excuse me?

PROF. SPEED: I believe I said yes to a quote from his testimony which used that phrase.

MR. HARMON: Okay. And that is in fact part of the testimony that he presented, is it not?

PROF. SPEED: That is my recollection.

MR. HARMON: And is this one of the reasons you didn't want to talk to him on the phone, because you didn't want to discuss this with him?

PROF. SPEED: Well, as I--

MR. NEUFELD: Objection, your Honor, argumentative.

THE COURT: Overruled.

PROF. SPEED: Well, I really didn't want to enter into discussions about things on which I was about to testify where I would be--I don't really have much to add to what I said before except that I'm repeating myself. Publicly disagreeing with his point of view makes me feel slightly uncomfortable. I would rather have done it in an informal interchange well in advance of this situation and suddenly a few days before I'm about to start up and testify it is not a situation I relished. And I took your statement that it wasn't necessary that I do this at its face value and declined.

MR. HARMON: Well, why didn't you do it months ago, then?

PROF. SPEED: Well, you know, we have busy lives. I've been in Australia a bit. I've had a very busy semester and I don't know where Bruce has been other than here, but we haven't been having regular informal exchanges on these matters since the trial began. And, well, it doesn't seem to me too surprising, but perhaps we should have.

MR. HARMON: In retrospect you think maybe you should have?

PROF. SPEED: I'm really saying perhaps some other people feel we should have.

MR. HARMON: Okay. Now, in fact, if one were to--did you cull that out of his testimony yourself or did somebody present that snippet of his testimony to you to comment on?

PROF. SPEED: I have read the testimony and obviously I was very interested in Bruce's views on something that I was testifying about. It wasn't my suggestion that we actually state it, though. It was something that I preferred to do, rather than have it done some other way.

MR. HARMON: Do you mean to imply that Professor Weir does not recognize the possibility of error?

PROF. SPEED: I didn't mean to imply that.

MR. HARMON: Do you mean to imply that he rejects the notion that one might consider laboratory error rate?

PROF. SPEED: It is my impression that Dr. Weir does not accord laboratory error rate the importance that I do and that seemed a fairly clear statement of it, and I haven't actually seen him write anything that is fundamentally contradictory to that statement, so that seemed to be his view.

MR. HARMON: So you disagree with him on the significance that should be accorded to a laboratory error rate? Is that what you have just said?

PROF. SPEED: Oh, very much so.

MR. HARMON: And know that there could be a laboratory error?

PROF. SPEED: He has not said specifically that laboratory errors are impossible, yet he has, to my knowledge, never said they should play a role in the statistics of assessing the chance of incorrectly concluding somebody is the source of a DNA sample.

MR. HARMON: Okay. I would like you to actually look at the broader--and I would like to show you 37--I'm sorry, pages 33733 and 33734 of Professor Weir's testimony.

MR. NEUFELD: Do you have a copy for me, please?

(Brief pause.)

MR. HARMON: Okay. Could I have that back?

PROF. SPEED: (Witness complies.)

MR. HARMON: Does that help refresh your recollection about the full passage that Professor Weir made those statements in?

PROF. SPEED: Yes, but I certainly would appreciate a copy if you want to question me more about it.

MR. HARMON: I wish I had a Xerox machine here and I will give you one.

THE COURT: Well, counsel, I will tell you what--

MR. HARMON: Okay.

THE COURT: Let's take a recess. All right. Ladies and gentlemen, we are going to take our mid-morning recess. Please remember all my admonitions to you. Dr. Speed, you may step down. You are ordered to return in fifteen minutes. All right. We will take 15.

(Recess.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. Anything we need to take up before we conclude with Dr. Speed?

THE COURT: All right. Let's bring out the jury, please.

MR. COCHRAN: Your Honor, I spoke with the bailiff and they said that was agreeable with them.

THE COURT: All right. So ordered. 1:30.

MR. COCHRAN: Thank you.

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Dr. Speed, would you resume the witness stabbed, please. All right. The record should reflect that we have been rejoined by all the members of our jury panel. Dr. Terence Speed is again on the witness stand undergoing cross-examination by Mr. Harmon. And Mr. Harmon, you may proceed.

MR. HARMON: Thank you, your Honor. Your Honor, may we mark the two pages of Professor Weir's testimony that I had shown to Professor Speed?

THE COURT: That would be 578.

MR. HARMON: 78, yes, your Honor.

THE COURT: 578.

(Peo's 578 for id = 2-page document)

MR. HARMON: Professor Speed, I want to come back to where we left off and I have blocked out a couple of the pertinent passages that you referred to yesterday. You had a chance to read that before the break?

PROF. SPEED: Yes.

MR. HARMON: Now, isn't it true that Professor Weir, at the conclusion of the series of questions and answers, his final statement on the subject of laboratory error rate, with respect--with regard to the frequency estimates that he presented was: "I reject the notion that it," the laboratory error rate, "Should be incorporated"?

PROF. SPEED: That's correct.

MR. HARMON: Is that correct?

PROF. SPEED: That is what it says.

MR. HARMON: And you understand from having read Professor Weir's testimony, that the only statistics that he presented in his testimony were the population frequency estimates for the biological matches in this case?

PROF. SPEED: That's correct.

MR. HARMON: Is that true? And you don't take issue with Professor Weir's statement that he rejects the notion that laboratory error rate and the population frequencies should be incorporated, do you?

MR. NEUFELD: Objection. That is not the testimony and there is no--

THE COURT: Overruled. Overruled.

MR. NEUFELD: Objection, assumes facts not in evidence.

THE COURT: Overruled.

PROF. SPEED: Could you restate the question, please?

MR. HARMON: Sure. Professor Weir, in the end of that series of questions and answers stated, did he not: "I reject the notion that it should be incorporated"?

PROF. SPEED: Yes.

MR. HARMON: And from having read his testimony you know that he--that he was referring to the "It" was the laboratory error rate?

PROF. SPEED: Yes.

MR. HARMON: Okay. And the--what it should be incorporated or should not be incorporated with was the population frequency estimates, which is the only estimate that he presented? That is what you understood that answer to mean, did you not?

PROF. SPEED: Yes.

MR. HARMON: Yesterday one of the slides that we saw was a quote from the national research council on page 88. Do you recall?

PROF. SPEED: Yes.

MR. HARMON: And that quote was: "Coincidental identity and laboratory error are different phenomena so the two cannot and should not be combined in a single estimate; however, both should be considered." Do you recall that being up on the screen?

PROF. SPEED: I do indeed.

MR. HARMON: You endorse that statement yesterday from page 88 of the NRC report?

PROF. SPEED: I still do.

MR. HARMON: And you agree with Professor Weir's statement that it should be incorporated, the laboratory error rate should be incorporated with the population frequency estimate; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: And the reality is Professor Weir didn't agree that you could quantify laboratory error rate. That is what he discussed in that segment, didn't he?

MR. NEUFELD: Objection, assumes--that is not the testimony.

THE COURT: Overruled.

PROF. SPEED: May I read the sentence that we are talking about? He says: "You are asking me in essence to quantify something I don't think exists, so I reject the notion of an error rate."

MR. HARMON: "I reject the notion that it should be incorporated"?

PROF. SPEED: Well, I'm sorry, he rejects the notion it should be incorporated, but the "It" that we are talking about he has just previously said doesn't exist. That is what I thought--that is the quote that I was agreeing to yesterday. Incorporation of something that doesn't exist seems a moot point. He is stating very clearly here, as far as I read it, you are asking me in essence to quantify something I don't think exists. The "Something" in question there is error rates, so "I reject the notion of error rate." I don't see how that contradicts what I was saying yesterday. I didn't go on to comment on the quote that he rejects the notion that the "It" that he has just said doesn't exist should be incorporated, but I think he said very clearly that he doesn't think error rate exists. That is my reading of this document.

MR. HARMON: And you read his entire testimony?

PROF. SPEED: I do, yes.

MR. HARMON: And he did not acknowledge that it is possible to make errors in DNA testing? Is that your testimony?

PROF. SPEED: No, he--

MR. HARMON: I'm sorry.

PROF. SPEED: That is the curious thing. He acknowledges that errors are possible, but here, as we have just read, he rejects the notion of an error rate. He says it doesn't exist so it can't be quantified. To me that is a very paradoxical point of view.

MR. HARMON: Well, you haven't made any attempts to quantify it yourself independent of his statement, have you?

PROF. SPEED: I have spoken--the answer is no to that, if I may elaborate.

MR. HARMON: Well, it is?

PROF. SPEED: I have spoken to the--

MR. HARMON: Objection. It is nonresponsive, your Honor.

THE COURT: Ask another question.

MR. HARMON: Now, yesterday at the very close of your direct examination Mr. Neufeld posed to you the dilemma when one has a coincidental match where the estimate is one in billions. Do you recall that at the very close of your testimony yesterday?

PROF. SPEED: Well, I think--I know roughly what you are talking about, but I don't think you have stated it very precisely.

MR. HARMON: Okay. Well, I will do my best. And that furthermore, that there could be a match by mistake. Do you recall that phrase that you used, "A match by mistake"?

PROF. SPEED: Yes.

MR. HARMON: And the numbers that you refer to were 1 in 50 to 1 in 200. Do you recall that series of questions?

PROF. SPEED: I do. I do.

MR. HARMON: And that is the very point that the NRC addresses on page 88, the quote that I just read to you about not combining laboratory error rate and chance of a match. Do you recall that?

PROF. SPEED: Well, I recall you reading it, yes.

MR. HARMON: And that is what was up on the screen yesterday?

PROF. SPEED: That is what was up on the screen.

MR. HARMON: How many biological samples were tested in this case?

PROF. SPEED: I really--I really don't know the answer to that, but I would say in the range 50 to a hundred, but I'm just guessing, so perhaps I shouldn't even bother.

MR. NEUFELD: Objection. I move to strike since he said he was guessing.

THE COURT: Overruled. The jury can put that into appropriate context.

MR. NEUFELD: Okay.

MR. HARMON: Let me give you a definition so that we can go a little bit further with this question. Let's define a sample as any biological sample which undergoes the DNA testing process, okay?

PROF. SPEED: Yes.

MR. HARMON: Let's assume just for a hypothetical, since I don't want you to guess about how many, that there have been two run samples analyzed in this case, according to the definition I just gave you. Okay?

PROF. SPEED: Yes.

MR. HARMON: If those numbers that you threw out yesterday, 1 in 50 to 1 in 200 were real laboratory case work, laboratory error rate--are you with me so far?

PROF. SPEED: I am.

MR. HARMON: --what that means is that the chances--or that if those estimates are correct that 196 to 199 of the results that were--that might have been presented, if 200 samples were tested, were in fact the correct answers, doesn't it? Isn't that what it means?

PROF. SPEED: That is one way of interpreting it, yes. I'm not sure--

MR. HARMON: That is a correct way to interpret it?

PROF. SPEED: Well, error rate is a rather vague term. To address the issue you are talking about one has to split it up into false positives and false negatives and I think in terms of the sample you are referring to, not just the number of samples, but during the testing process the number of opportunities for making a false positive, the number of opportunities for making a false negative, and then assess the expected number of each of those kinds. That would be assuming you had an estimate of the rate. I don't think it is enough just to count samples.

MR. HARMON: Okay. Well, those are your numbers 1 in 50 to 1 in 200?

PROF. SPEED: I mention those as the sort of numbers one sees coming from blind external proficiency tests in related areas, for example, the bone marrow program where they do conduct these sort of tests and they get results of that order.

MR. HARMON: Okay. So one correct way to interpret the numbers that you threw out yesterday, 1 in 50 to 1 in 200, if 200 samples were tested, as I have defined samples, would be that 196 to 199 of them were the correct answers; isn't that true?

PROF. SPEED: Well, in my last answer I think I just said I think it is actually important in this context to split--

MR. HARMON: Objection, your Honor. That is nonresponsive.

PROF. SPEED: The answer is it is not true then.

MR. HARMON: It is not true?

PROF. SPEED: No.

MR. HARMON: Yesterday you said that at the end of that series of questions that of the two, the coincidental match of one in billions and the match by mistake of 1 in 50 to 1 in 200 you said matched, the match by mistake plays a more important role. Do you recall giving that answer at the very end of your direct examination?

PROF. SPEED: I do.

MR. HARMON: And when you said that that plays a more important role, weren't you violating the very caution that the NRC prescribed in 1992 when they said: "Coincidental identity and laboratory error are different phenomena so the two cannot and should not be combined in a single estimate; however, both should be considered"? Weren't you violating that?

PROF. SPEED: I don't see how. I was making a statement about the relative magnitude of the components. I wasn't combining them and I was considering both.

MR. HARMON: Professor Speed, you have not criticized any of the frequency estimates which have been presented to this jury in this case, have you?

MR. NEUFELD: Objection, argumentative and beyond the scope.

THE COURT: Sustained. Beyond the scope.

MR. HARMON: Professor Speed, have you criticized any of the frequency estimates which have been presented in this case?

MR. NEUFELD: Objection, beyond the scope.

THE COURT: Sustained.

MR. HARMON: Professor Speed, you do not mean by any of your discussions about laboratory error and the match by mistake plays a more important role, that if the jury decides that there was not a mistake made in any of the testing in this case that the population frequencies are incorrect?

PROF. SPEED: I haven't previously said that, but if you asked me do I believe the population frequencies, the answer is no.

MR. HARMON: You have not criticized in your direct examination any of the population frequency estimates in this case, have you?

MR. NEUFELD: Objection, beyond the scope of the direct examination.

THE COURT: Sustained. Sustained.

MR. HARMON: You have simply alerted the jury to consider the possibility of certain errors which may have occurred in this case; isn't that true?

MR. NEUFELD: Objection, argumentative, the form of the question.

THE COURT: Overruled.

PROF. SPEED: I think the answer simply is inappropriate there. I spoke on one aspect. I have not approved or disapproved. At least I did not approve or disapprove of the frequencies in my direct examination. I didn't address them, so--

MR. HARMON: Some of the possible errors that might have occurred in this case you listed as the chance of a sample mix-up?

PROF. SPEED: Yes.

MR. HARMON: Do you remember that? You just generalize with errors in DNA testing. Do you recall that?

PROF. SPEED: Yes.

MR. HARMON: And then you describe generally errors in all stages of handling. Do you recall that?

PROF. SPEED: I do.

MR. HARMON: Now, you have relied on the evaluation and testimony of Dr. Gerdes in recognizing the possibility of sample handling cross-contamination in your case, haven't you?

PROF. SPEED: Not solely, no. I also relied on that flow chart that we had up there which I believe is a Prosecution flow chart which shows the possibilities of errors before the samples are split and sent to the separate labs. And I am just relying on my general experience that nobody can say with certainty no errors occurred in that initial phase.

MR. HARMON: You have not made any attempt to quantify the likelihood that any of those errors actually occurred in this case, have you?

PROF. SPEED: That is not my role. That is the role of external blind proficiency tests. I'm simply pointing out their possibility. And in fact I was saying there should be tests to quantify these error rates.

MR. HARMON: Professor Speed, I want to ask you, you yourself, are you saying you are not capable of quantifying the likelihood of errors having occurred in a case such as this, a complex case such as this?

MR. NEUFELD: Objection, asked and answered and the word "Complex."

THE COURT: Overruled.

PROF. SPEED: I am not able to on the basis of my knowledge at the moment in this specific context. I have said how I think they should. It is not possible to look at a single case and come up with error rates. They require--sorry to keep saying this--external blind proficiency tests.

MR. HARMON: And the weak part is your knowledge at the moment in deciding how to approach this problem, isn't it?

PROF. SPEED: Well, "Weak" in what sense?

MR. HARMON: It is deficient?

PROF. SPEED: I'm not attempting to produce figures.

MR. HARMON: You have not attempted to produce figures?

PROF. SPEED: I have not attempted to produce figures.

MR. HARMON: In fact, nothing you have said constitutes statistical evidence that any of those possible errors actually occurred; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: If the jury decides that none of these possible errors actually occurred, then the only statistical information which they have to evaluate the match evidence in this case is the frequency estimates produced by Dr. Weir; isn't that true?

MR. NEUFELD: Objection.

THE COURT: Sustained.

MR. HARMON: Professor Speed, would you be willing to allow the jury to decide whether any of these possible errors actually occurred?

MR. NEUFELD: Objection. Objection.

THE COURT: Sustained. Sustained.

MR. HARMON: Professor Speed, since you have not provided any statistical information about the possibility that any of these errors occurred, what information is left to this jury to decide the significance of the biological matches that have been presented in this case?

MR. NEUFELD: Objection. May we approach, your Honor?

THE COURT: Overruled.

PROF. SPEED: What I have spoken to is the way in which errors can be assessed with correct testing.

MR. HARMON: Objection, your Honor. That is nonresponsive.

THE COURT: It is. Answer the question, professor.

PROF. SPEED: I'm sorry, could you repeat the question?

MR. NEUFELD: I'm sorry. Were you sustaining the objection, your Honor, or overruling it?

THE COURT: No, I'm directing him to answer the question.

MR. NEUFELD: Thank you.

MR. HARMON: Professor Speed, since you have not provided any statistical information about the possibility that any of these errors occurred, what information is left to this jury to decide the significance of the biological matches that have been presented in this case?

PROF. SPEED: I thought I was starting to answer that, but I was speaking generally to the possibilities. I mentioned some figures that I know of in my experience as a statistician and in reading literature on error rates in similar biological context. I believe that is information that I've provided the jury. I don't understand why--

MR. HARMON: What about Dr. Weir's frequency estimates?

PROF. SPEED: Excuse me. What about them?

MR. HARMON: Well, is that left for the jury to decide since you have not presented any statistical evidence of cross-contamination or any of these errors?

MR. NEUFELD: Objection, argumentative and beyond his expertise.

THE COURT: Argumentative. Rephrase the question.

MR. HARMON: Do you mean by the generalizations that you have presented to this jury that the jury should not be free to consider the population frequency estimates that were presented by Dr. Weir?

PROF. SPEED: I'm not telling the jury what they should or should not consider. I was not speaking about population genetics frequencies and I have made no statement to date, except a very brief one earlier in this cross-examination, about those issues.

THE COURT: All right. Let's wind this up.

MR. HARMON: I'm trying to, your Honor.

MR. HARMON: If the jury decides that none of those possibilities--

THE COURT: Counsel, rephrase that. The jury gets to decide all issues of fact in this case. They understand that.

MR. HARMON: Since the jury gets to decide whether any possible errors occurred--

THE COURT: No. Let's start again.

MR. HARMON: Since you have presented no statistical evidence that demonstrates the likelihood that any errors which might have occurred actually occurred, the only estimates, statistical estimate which they have to evaluate the significance of the match evidence in this case is Professor Weir's population frequency estimate; isn't that true?

PROF. SPEED: I don't believe that is a correct description of my testimony. I believe, without actually giving numbers and saying these are error rates on the basis of certain sorts of tests, I have still given them statistical information.

MR. HARMON: Given them estimates?

PROF. SPEED: I have not given them numbers, but I believe my testimony has been informative.

MR. HARMON: Thank you. I have no further questions.

THE COURT: Mr. Neufeld.

REDIRECT EXAMINATION BY MR. NEUFELD

MR. NEUFELD: Professor Speed, do you believe that providing Dr. Weir's frequencies without providing error rates in this case is misleading?

PROF. SPEED: That was my direct testimony.

MR. NEUFELD: Now, Mr. Harmon asked you a couple of questions about--about your position on assumptions. Do you recall that?

PROF. SPEED: I do.

MR. NEUFELD: Okay. And about certain things being mainstream and not being mainstream. Do you remember that?

PROF. SPEED: That's correct, yes.

MR. NEUFELD: Okay. Do you believe, sir, that your views on the necessity of relying on external blind proficiency tests to produce error rates for forensic DNA profiling is mainstream or minority position?

PROF. SPEED: I think in this situation I'm very much in the majority. I hardly know another statistician who is knowledgeable about statistics and DNA profiling who doesn't think that.

MR. NEUFELD: One moment.

MR. NEUFELD: Now, remember when Mr. Harmon put up a picture of the Bronco stains, item 303, 304 and 305? Would you turn that on again, please. I meant the flow chart.

PROF. SPEED: Yeah.

MR. NEUFELD: All right. And he was pointing out to you that these stains did not have the same common point of--common point of origin as did the Bronco--the Bundy blood drops. Do you recall that?

PROF. SPEED: I do.

MR. NEUFELD: Now, do you see, by the way, on this sheet, where it states that the bloodstains for 303, 304 and 305 were actually collected on August 26th, 1994?

PROF. SPEED: Yup, I see that.

MR. NEUFELD: Now, even though they may have no common mode of error with the Bundy drops, is it conceivable, from a statistical standpoint, that 303, 304 and 305 may have their own common mode of error?

MR. HARMON: Objection, calls for speculation, no foundation.

THE COURT: Sustained. And we are referring to People's exhibit 565.

MR. NEUFELD: Yes. Thank you, your Honor.

MR. NEUFELD: Well, it has been asserted in this case--let me ask you a hypothetical. Assume that there has been testimony that these stains had been in the car, in the Bronco, for two months prior to their collection and assume that during those two months there were numerous unauthorized persons entering the Bronco or had access to the Bronco.

MR. HARMON: Objection, no foundation, calls for speculation.

THE COURT: Overruled.

MR. NEUFELD: If an error happened during that two-month period, approximately two-month period, is that the kind of error which you described earlier as a common mode of error?

MR. HARMON: Objection, calls for speculation, no foundation, assumes facts not in evidence.

THE COURT: Overruled.

PROF. SPEED: It is stretching the definition somewhat, but it captures the essence, that it is something that is common to those samples before they received their separate analyses, which in this case I assume were consistent.

MR. NEUFELD: You mention you haven't quantified the error rate for forensic DNA profiling; is that correct?

PROF. SPEED: That is correct.

MR. NEUFELD: But have you made suggestions to the appropriate bodies on how that error rate could possibly be quantified?

PROF. SPEED: I have. I have written a letter to the national research council relating to the update or the second volume of this and of course I have simply echoed in a little more detail the sentiments in the first one.

MR. NEUFELD: Finally, the Prosecutor asked you whether or not you had called Dr. Weir before you testified today and you said you hadn't. And you mention that you had been consulting or working with using your expertise, your time and your effort to assist the Defense or to explain things to us, since September of 1994. Did Dr. Weir, prior to his taking the witness stand here, call you to discuss his positions?

PROF. SPEED: No, he didn't. I think we are both a little uncomfortable about being on opposite sides in this issue.

MR. NEUFELD: Nothing further. Thank you.

THE COURT: Mr. Harmon.

MR. HARMON: Just a few, your Honor.

RECROSS-EXAMINATION BY MR. HARMON

MR. HARMON: So you think Professor Weir misled this jury about not presenting error rates?

MR. NEUFELD: Objection as to his impression of someone else. Misleading.

THE COURT: Overruled.

PROF. SPEED: I--that quote that you gave me earlier, I disagree with it.

MR. HARMON: Objection. That is nonresponsive.

THE COURT: Overruled.

PROF. SPEED: You are asking me to say did a colleague mislead a jury and that sounds a rather strong sort of statement, but if I've got to answer yes or no, then the answer must be yes.

MR. HARMON: Didn't you just say that to Mr. Neufeld--did you hear the question he asked you about that?

MR. NEUFELD: Objection, asked and answered.

THE COURT: Overruled.

PROF. SPEED: Sorry.

MR. HARMON: Now, this is Mr. Neufeld, okay, and I would like to ask you if he asked you this question about five minutes ago, okay? "Professor Speed, do you believe that providing Dr. Weir's frequencies without providing error rates in this case is misleading?" Did you hear him ask you that?

PROF. SPEED: I did.

MR. HARMON: And did you say: "That was my direct testimony"?

PROF. SPEED: I did.

MR. HARMON: Did you mean that?

PROF. SPEED: I did.

MR. HARMON: He was misleading?

PROF. SPEED: All I can say is to say something is misleading is a more benign way than answering yes, this person misled the jury, which is what you asked me.

MR. HARMON: Okay.

PROF. SPEED: And I would--understandably I'm uncomfortable about having it phrased in that way.

MR. HARMON: Now, in fact this jury heard the laboratory error rates for each of the laboratories that were presented from the laboratories themselves; isn't that true?

MR. NEUFELD: Objection again to this jury and objection to his misstating the testimony.

THE COURT: Overruled. Overruled. Sit down.

PROF. SPEED: When I use the term "Error rate" I mean--

MR. HARMON: Objection. That is nonresponsive, your Honor.

THE COURT: No. He can answer the question. The form of that question allows this type of answer. Go ahead and answer the question, professor.

PROF. SPEED: I don't believe that the figures presented by the three bodies, if indeed all three did, are error rates in the appropriate statistical sense, because they were not evaluated on the basis of external blind proficiency tests. So my answer to that question is no, they did not present error rates to the jury. They may have presented figures to the jury, but I would not dignify those figures with the description error rates in the sense that I'm sitting here talking about this term.

MR. HARMON: And in the ten months that you have been retained on this case you have made absolutely no effort to calculate an error rate that would meet your satisfaction; isn't that true?

THE COURT: We've already covered that.

MR. HARMON: So you disagree with the form of the proficiency test results that they have presented to this jury, each of the laboratories?

PROF. SPEED: The answer is yes. The design of the study that goes into an estimate is fundamental to the meaning of that estimate.

MR. HARMON: Now, let's go back do 303, 304 and 305, if you will. Now, you had never seen or been interested in any of the information that is on that exhibit until I showed it to you today; isn't that true?

PROF. SPEED: That is not exactly true, no.

MR. HARMON: What is the truth about those items?

PROF. SPEED: The truth is a little vaguer. I have sort of patchy knowledge of quite a lot of this evidence, but I do not feel comfortable sitting here claiming to have a detailed and accurate knowledge. But it is just not true to say I have never been interested. I actually have a lot of this stuff just to sort of, as it were, general background so I know the context in which I'm thinking about these issues.

MR. HARMON: Now, you allowed, in response to Mr. Neufeld's questions, that there might be something in common with all three of those samples. Is that what you said?

PROF. SPEED: I believe so.

MR. HARMON: But you have no idea what it is, do you?

PROF. SPEED: No, I don't.

MR. HARMON: Do you remember what the results are on those three samples?

PROF. SPEED: Well, I don't remember them, no.

MR. HARMON: So you have no idea whether we--the possibility of this common mode failure actually existed with those three samples; isn't that true?

PROF. SPEED: In general--the answer is no, but that is a general situation. Usually you don't know if errors occurred unless it is in a test where the truth is known.

MR. HARMON: Now, one of Dr. Gerdes' contentions was that in the sample handling for the evidence that was collected at Bundy, they were exposed to--samples from Bundy were exposed to the Defendant's reference sample. Are you aware of that?

PROF. SPEED: I am--

MR. NEUFELD: Objection as to Dr. Gerdes' intentions.

MR. HARMON: Contentions.

MR. NEUFELD: Same objection.

THE COURT: Rephrase the question.

MR. HARMON: Sure.

THE COURT: Counsel, aren't we going a little broadly here?

MR. HARMON: I'm almost done, your Honor. It is within the scope. Yes, we are.

MR. HARMON: One of Dr. Gerdes' contentions is that the stains from Bundy had potential exposure to Mr. Simpson's reference sample during the sample handling. You were here for that, right?

PROF. SPEED: That's right, and I am aware of that.

MR. HARMON: Do you have any idea or information, in this general background information that you have, whether or not the same statement could be made about 303, 304, 305?

PROF. SPEED: No.

MR. HARMON: Not--not a whit of information?

PROF. SPEED: At this--sitting here, no, I believe I have some notes, but that is not relevant.

MR. HARMON: Okay. And the same question with regard to being exposed to Nicole Brown's reference sample, not an idea at all about whether or not those three samples were exposed to her reference sample during any of the processing?

PROF. SPEED: That's true.

MR. HARMON: And the same question with regard to Mr. Goldman's sample, you do not have any idea whether or not those three samples had any exposure to Mr. Goldman's reference sample; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: Okay. Thanks.

MR. COCHRAN: May we approach, your Honor, one second?

THE COURT: No.

MR. COCHRAN: I'm sorry.

FURTHER REDIRECT EXAMINATION BY MR. NEUFELD

MR. NEUFELD: Mr. Harmon asked you whether or not your requirement that the error rates be based on external blind proficiency testing was an objection you had as to the form of the testing. Do you recall that?

PROF. SPEED: Could you state that again. An objection--

MR. NEUFELD: Okay. Do you remember whether--I don't mean in the legal sense, sir. I mean do you remember when Mr. Harmon was asking you a few minutes ago whether or not your opinion that external blind proficiency testing is a necessity is a precondition for presenting an appropriate error rate, whether he asked you was that simply, you know, your opinion. Do you remember that?

PROF. SPEED: I do remember that.

MR. NEUFELD: Okay. Is that also something which has been strongly recommended by the national research council?

PROF. SPEED: Certainly. It was in the quotes we read out.

MR. NEUFELD: Has both the necessity of external blind proficiency testing in error rates been strongly recommended by your colleagues in the statistics community?

PROF. SPEED: Yes.

MR. NEUFELD: Thank you.

MR. HARMON: Nothing further, your Honor.

MR. COCHRAN: May we approach, your Honor?

THE COURT: Yes. As to this witness?

MR. COCHRAN: Yes.

(The following proceedings were held at the bench:)

THE COURT: We are at the side bar. Mr. Cochran.

MR. COCHRAN: The reason I wanted to approach the bench, your Honor, just as an observer, one other time the Court had told me to sit down when I made an objection, and the Court later somehow apologized. In an exchange that I observed, Mr. Neufeld was doing what the Court has asked us to do, stand up, and the Court says "Sit down" as though you were unhappy with Mr. Neufeld. He wasn't doing anything. He stood there and then he sat down as you said that. Whenever I see that I think I should bring that to the Court's attention. The Court might want to clear that up. I don't think you were angry with Mr. Neufeld--

THE COURT: I think I'm impatient with both sides. This is a very simple issue and we have managed to spend a day and a half on a very simple issue.

MR. HARMON: You told me to sit down and I have forgiven you for it.

THE COURT: Well, thank you.

MR. COCHRAN: I wanted to bring it up. At that time I didn't think he did it. You may have been impatient.

THE COURT: I have told both of these counsel to sit down and I'm telling them now to sit down.

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. Dr. Speed, thank you very much, sir. You are excused.

PROF. SPEED: Thank you.

THE COURT: All right. I think we need to discuss our next witness, correct.

MR. COCHRAN: Yes, I think there may be some motions.

THE COURT: All right. Ladies and gentlemen, let me ask you to step back into the jury room for a few moments.

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. The record should reflect the jury has withdrawn from the courtroom. Two matters we need to take up. We need to take up the matter with the city attorney's office and the motion in limine regarding Dr. Mullis.

MR. COCHRAN: Yes. May I have just a second, your Honor?

THE COURT: And you indicated, counsel, that you wanted Dean Uelmen to be here for the Internal Affairs argument.

MR. COCHRAN: Yes.

THE COURT: I have not seen him.

MR. COCHRAN: Yes, your Honor. My understanding his plane was to be here at 10:10 and we are expecting him any moment. I had Mr. Douglas step out and check. Apparently he is not here yet. And if I can have just a second, I want to inquire about the motion in limine regarding Dr. Mullis.

MS. CLARK: Because Mr. Uelmen is not here yet, your Honor, we could take up the issue of Dr. Baden's discovery.

MR. COCHRAN: Let's see where we are on this.

THE COURT: Let's see where we are here.

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: Your Honor, what I would propose to the Court is we need, as I indicated to the Court, to utilize the time over the lunch hour to make some decisions regarding order of witnesses. And what I would like to do now is to proceed with the argument regarding Dr. Baden and Mr. Kelberg and Mr. Shapiro. By that time I'm hopeful that Dean Uelmen will be here and we can have the city attorney here and then I would ask the Court to defer.

THE COURT: Here he is.

MR. COCHRAN: As we speak, yes.

THE COURT: Let me ask Mrs. Robertson to ask Mr. Walsh--he is on his way over.

MR. COCHRAN: We can proceed, if the Court wants to, with the Dr. Baden motion and we will be ready for Dean Uelmen and I will ask for a recess at that point, your Honor, as to the other--

THE COURT: That's fine. All right. Mr. Shapiro, are you going to handle the matter regarding Dr. Baden and Dr. Wolf?

MR. SHAPIRO: Yes, your Honor. Thank you.

THE COURT: Mr. Kelberg.

MR. KELBERG: Good morning, your Honor, and thank you for giving me a moment or two of your time. I was provided--our office was provided late yesterday evening under an August 8, 1995, cover letter, various notes of Dr. Baden, Dr. Wolf, Dr. Lee, and conspicuously absent from these notes is any note made by either Dr. Baden or Dr. Wolf during the time of Dr. Lakshmanan's testimony. And if the Court doesn't want to take my recollection, I'm sure we have videotape available, but my recollection is both doctors Baden and Wolf had yellow pads on which they were scribbling what appeared to me to be copious notes during the course of Dr. Lakshmanan's testimony, in particular his description of wounds and interpretation of wounds, et cetera, et cetera. This material has not been provided to us and there is no basis on which it becomes privileged. If these are their notes, they are their notes. There is no work product privilege that applies if the witness is to be called. And in fact in California, as the Court is well aware under Izazaga, the only work product privilege that applies is 2018(c) under the code of civil procedure, the absolute work product privilege of attorneys. There is nothing in Izazaga that prevents or allows to, in essence, hide those notes from us and really those are the crux. I'm assuming Dr. Baden is going to come in here and talk about forensic pathology. If he wants to walk in here and talk about stain analysis and DNA and so forth, where the notes that he has provided us may have some relevancy, we may be having an issue as to his expertise, but if he is coming in to talk about forensic pathology, there is almost nothing in his notes, other than a litany of what he saw on June 22nd at the Coroner's office--actually notes of Dr. Wolf during the course of their examination--there is nothing of course regarding findings, interpretations, what have you. Clearly under the lines case, 13 cal.3D 500, it is clear if he is going to be called, even if there were a work product privilege attached, it is waived by the concept of calling him. And as I said yesterday to the Court, I learned to try cases when trial by ambush and one-way discovery was the rule of the day, so I'm not going to stand here and tell this Court I'm not ready to go. I'm ready to go. I could be ready to go in thirty seconds if they wanted to put him on next, but in fairness, if we are going to have reciprocal discovery, if we are going to try and avoid these ambushes, if the Defense is not going to be able to hide this ruse from our evaluation in advance, then I must be down here and ask this Court to impose the will of the People of reciprocal discovery that they provide these materials to us. And again, I know of no legal basis, not attorney/client--because there is no confidential communication between the client and Dr. Baden or Dr. Wolf. This is Dr. Baden or Dr. Wolf taking notes during Dr. Lakshmanan's testimony. So it is all on work product of which there is no work product privilege under Izazaga, and even if there were, under lines it is waived by their decision to call him. So I ask for those notes, any other notes that may exist, and I also ask to preview any boards or charts or diagrams that the Defense intends to use during the course of Dr. Baden and/or Wolf's testimony.

THE COURT: Other than those that aren't already in evidence?

MR. KELBERG: Correct. Of course. Those are my requests, your Honor.

THE COURT: All right. Mr. Shapiro.

MR. SHAPIRO: Good morning, your Honor, and thank you. Your Honor, I think Mr. Kelberg is well aware that on June the 14th of 1994 I retained the services of Dr. Baden, Dr. Wolf and Dr. Lee as a consultant. And upon that retention I notified the Los Angeles Police Department that in my opinion these were the leading experts in the country in their specific fields and offered their services to both the Coroner and to the crime lab at the Los Angeles Police Department to aid them in any way that could be of benefit in trying to focus on who the real killers were in this case. That request was turned down. Dr. Baden has been consulting with me on almost a daily basis since this case began and is familiar with almost each and every aspect of the case, including evidence collection, including forensic pathology, obviously. He was the person who found the errors at the Coroner's office that resulted in a report being generated of sixteen mistakes and of the contusion to the brain that was missed by the Coroner. He, like Dr. Lakshmanan, who in the most tedious testimony in this case over eight days is not a person who makes copious notes of everything he does in an overall consultation. He is a conduit between the pathology, Mr. Simpson and myself to educate me so I can hopefully present the points of view to the jury regarding the pathology in this case, the manner and cause of death, and the circumstances surrounding that death. As the Court will note, Dr. Lakshmanan testified he spent 200 hours in preparation, yet he had not a single note, so I don't find it surprising that Mr. Kelberg would be unaware--I find it surprising that Mr. Kelberg now would expect that Dr. Baden has substantial notes. Regarding whether or not the notes that were taken during the examination are discoverable, I would suggest to your Honor that since those were done at my direction and since both doctors were here at my request and since they were aiding me in my presentation of cross-examination of Dr. Lakshmanan, that they are clearly privileged and are not discoverable. And they are part of the work product that I generated along with the doctors recording this case and purely for one purpose, for the cross-examination of Dr. Lakshmanan, so those are not discoverable.

We have had two requests for reports and it is my practice with consultants not to ask for reports. Since they have been working on case for the last thirteen or fourteen months, it would be impossible to generate anything short of a book to be a comprehensive report of all the errors, mistakes and problems that they see with this case, so there are no such reports. As far as the notes that have been taken, I have asked Mr. Blasier to review all the materials. He has done that. He has furnished that to Mr. Kelberg. Mr. Kelberg has been very candid. He is ready to proceed; so are we. They have everything that they are entitled to.

THE COURT: Mr. Kelberg.

MR. KELBERG: Your Honor, that is, I hate to say this, a very disingenuous response. Is Mr. Shapiro saying that there are not notes that Dr. Baden and Dr. Wolf wrote that are in possession of the Defense and not provided to us? As I understand it, those notes do exist. Now they are claiming work product. Well, they didn't claim work product on the notes they sent across. And it doesn't matter whether Mr. Shapiro is the one that requested their presence here or not, 2018(c) is the only work product that applies in California. And of course Mr. Shapiro can't cite any conflicts with the Supreme Court decision in lines, 13 cal.3D 500, which even in a work product situation, which is what the old policy was when we had one-way discovery--I know the Court is well aware of the what is, 13 cal.3D--that by retaining the expert, by allowing the expert to do work on the case there was a work product privilege that applied. Lines says you put that witness on the stand, you waive the work product privilege as well as attorney/client because there the psychiatrist was evaluating the Defendant, so there was confidential communication. The Defense cannot stand here and say we are not entitled to those notes. I don't care what reason Mr. Shapiro had for having doctors Wolf and Baden here. The point is if they made notes we are entitled to them. And by the way, Mr. Shapiro conveniently does forget that Dr. Lakshmanan provided detailed reports and exhibits 350 and 351 identifying every injury that was observed, trying to identify every error that was found in his review of the autopsies. Apparently doctors Baden and Wolf were unable to do that, and the real reason, as everybody knows, is they want to ambush us and everybody knows. It is not a secret. That is the way the game is played. Is this going to be a game or is this going to be a search for the truth? If Mr. Shapiro can give this Court a citation to a controlling case from the California Supreme Court that says we are not entitled to it, let's hear it, let's look at the case, let's see if it in fact says what he says it will say. Let's see where lines is overruled. It is not. I submit to the Court this is an area I have done quite a bit of review in. I would like to think I am pretty up-to-date in the subject, and I think the Court will find there is no case which says lines no longer applies, in spite of prop 115 and reciprocal discovery. We are entitled to those notes. This should not be a trial by ambush. Whether I have the skill to cross-examine him or not right this moment without those notes is not the issue. What is the issue is the will of the People to see that this is a search for the truth and to get from the Defense the notes that they have. I will submit it, your Honor.

THE COURT: All right. Thank you, counsel. All right. I'm going to direct the Defense to turn over Dr. Baden and Dr. Wolf's notes, if they are to be called as witnesses. All right.

MR. SHAPIRO: Turned over when, your Honor?

THE COURT: Tomorrow?

MR. KELBERG: Your Honor, I understand Dr. Baden is going to be possibly on the stand tomorrow morning.

MR. COCHRAN: Possibly.

MR. SHAPIRO: Possibly.

THE COURT: No later than tomorrow.

MR. SHAPIRO: Thank you.

MR. KELBERG: Will I have an opportunity at least to thumb through them?

THE COURT: Yes, you will.

MR. KELBERG: Thank you, your Honor.

THE COURT: You are welcome. All right. Let's see. Mr. Walsh hasn't made it yet. How about the Mullis issue?

MR. COCHRAN: Your Honor, on that issue I think we indicated to the Court we wanted to take the time over the lunch hour to have some separate discussions.

THE COURT: All right. Then we will await Mr. Walsh to arrive with regard to the IAD issues.

MR. COCHRAN: We will proceed with that.

THE COURT: All right. Let's see. One other matter. Let me see Miss Clark and Mr. Cochran.

MR. KELBERG: Your Honor, I'm sorry, before the Court--

THE COURT: Yes?

MR. KELBERG: I also requested to see any exhibits that were used that were not already marked. Does the Court order include that opportunity?

THE COURT: It does. That will be the first thing tomorrow morning.

MR. KELBERG: Thank you, your Honor.

(The following proceedings were held at the bench:)

(Discussion held off the record.)

THE COURT: I asked you over here. We are over at the side bar. Mr. Cochran, I don't know if you are aware of this, my wife's continuing career progress, which she is now the Captain III of Internal Affairs. She was the Captain II, the chief investigator, now she is the Captain III.

MR. COCHRAN: I knew she was in charge of Internal Affairs. I had heard that, you know. That is all I know. She is a Captain III in charge of Internal Affairs?

THE COURT: Yes.

MR. COCHRAN: And I have not thought about that in this mix.

THE COURT: Yeah, because we had sort of--this water had sort of passed under the bridge long gone away, so we are coming back with Commander J.I. Davis who you know.

MR. COCHRAN: Yes.

THE COURT: He is the commander who is over that operations group and he is the one who responded to the subpoena duces tecum and he is the--the commanding officer of the group, Internal Affairs group. But just to let you know that that exists and you should advise your client of that.

MR. COCHRAN: I should and we are going to be--you let us have the time over the lunch hour.

THE COURT: That is one of the things you wanted to discuss with him.

MR. COCHRAN: If it comes down to any kind of records or subpoena stuff, I will talk to him, we would ask J.I. We wouldn't try to subpoena your wife.

THE COURT: One of the things that I might suggest, if in your discussions is you might want to have some other Judge rule on this particular issue.

MR. COCHRAN: You may be right, just out of an abundance of precaution because I don't know, if there is ever an appeal, we could be criticized if we didn't, and you may be right. May I have a minute to talk to Jerry about this?

MS. CLARK: On which?

THE COURT: On the motion regarding Internal Affairs and whether or not they have to cough up certain records.

MR. COCHRAN: I would like to talk to Jerry Uelmen about that. If we did, how soon would we be able to get somebody?

THE COURT: That is a good question. I would have to farm it out to Department 100. That is something I should have thought about before. But we've had about--every time I come to court there is three completely new issues.

MR. COCHRAN: Yes. Thank you for sharing that with us. We would like five minutes--Walsh isn't here yet.

THE COURT: Yes, he is.

MR. COCHRAN: Give me five, ten minutes with him and we will be ready. I will come back and give you a report as soon as possible on that.

THE COURT: My recommendation is that we ship it to somebody else.

MR. COCHRAN: I can't quarrel with that. I don't think I can quarrel with that. How do you want to phrase it?

THE COURT: Let me invite Mr. Walsh up, because it may be a scheduling issue.

(The following proceedings were held in open court:)

THE COURT: Mr. Walsh, would you join us, please.

(The following proceedings were held at the bench:)

MR. COCHRAN: Can I get Jerry up here?

THE COURT: Sure.

(Brief pause.)

THE COURT: Let me wait for Mr. Uelmen. Gentlemen, my apologies to you beforehand for not having contemplated this issue deeply. Sometimes arguments over SDT's sort of go on the back burner in light of what goes on in this case on a daily basis. I was just advising Mr. Cochran, reminding him again that my wife is the--was the Captain II Chief Investigator of Internal Affairs and is now the Captain III, the commanding officer of that particular division. And I think it would perhaps be more appropriate if we sent this hearing on whether or not Internal Affairs has to produce certain records, perhaps should be heard by a different Judge, the issue of the--of the validity of the SDT or the compliance with the evidence code sections. I would feel more comfortable if we have another Judge do this, and I apologize to you right now for not having contemplated this earlier, but I think--scheduling wise, because I know, Dean Uelmen, you have Stanford and riding the shuttle is not the greatest thing in the world. And Mr. Walsh, I know you have other things to do besides involve yourself with this.

MR. WALSH: Right.

THE COURT: I know that time is of the essence. We need to get this resolved pretty quickly, but I do think that it ought to be referred.

MR. UELMEN: Is another Judge available?

THE COURT: You know, having just contemplated this, I was thinking about Tracie Savage and Mark Fuhrman and a few other things that I have to worry about this week.

MR. WALSH: I don't have any problem with what you are suggesting, but I would just like to note for the record that Internal Affairs has taken pains to make sure that Captain York does not become part of any investigation touching on this case. But notwithstanding that, I respect your sensibilities.

THE COURT: Notwithstanding that, it still might have the appearance, so I would prefer we have another Judge take over.

MR. COCHRAN: We agree and I wanted Jerry to get a chance to respond.

MR. UELMEN: Our position of course is that this issue is related to the Tracie Savage question and should be resolved before your Honor rules on the Tracie Savage issue.

THE COURT: Okay. That is why I said time is of the essence far as getting this done.

MR. COCHRAN: Can we check?

THE COURT: Why don't we do this. Why don't we take our recess at this point, since it is a quarter to noon right now. Let me check with the supervising Judge and see if there is anybody available to hear this. Mr. Walsh, you told me you had a problem this afternoon?

MR. WALSH: No, I have no problem with this afternoon.

THE COURT: All right. Let me see if I can find somebody clear to hear this.

MR. COCHRAN: All right. We are going to be meeting on the other issue. There may or may not be a 402 motion regarding Dr. Mullis.

MS. CLARK: Yes.

MR. COCHRAN: We will make a decision regarding that. We could either leave early today, or not having any witnesses today, or have him on. I think that is kind of where we are at this point.

THE COURT: Okay.

MR. COCHRAN: We will focus our attention on this motion. The Court could then have an opportunity to get the result of this motion and perhaps work on this Savage motion, because we can't call certain witness--you know, we want Gascon, too. You got the message on that?

MS. CLARK: (Nods head up and down.)

MR. COCHRAN: We don't have to serve him, I presume, do we?

MS. CLARK: You want Gascon?

MR. COCHRAN: He is on our witness list.

MS. CLARK: For what?

MR. COCHRAN: You will find out. We want to give you notice we want him with Savage, Bosco, Gascon.

MS. CLARK: Assuming it is deemed admissible.

MR. COCHRAN: Yes, yes.

MS. CLARK: There would be an independent 402 on him.

MR. COCHRAN: That is fine. I'm just telling you now.

MS. CLARK: Well, that is going to be after--that is going--

THE COURT: Well, let's resolve this first.

MR. COCHRAN: I just want to give you notice.

THE COURT: How about if I direct all counsel then to return at 1:30, and in the meantime I will go talk with the supervising Judge.

MR. WALSH: I will come back also.

MR. COCHRAN: We are going to be here and we can get word to you if there is a court.

THE COURT: Come back at 1:30.

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. We have just had a side bar conference regarding schedule of the various motions that we have to take up. And counsel, I'm going to suggest that we stand in recess at this time until 1:30 and then we will start taking up the motions at that time. All right.

MR. KELBERG: Excuse me, your Honor. Mr. Shapiro I thought wanted to put something on the record, he asked me to stay, regarding photographs.

MR. SHAPIRO: I think I can work that out with Mr. Kelberg, your Honor. I didn't want to burden the Court.

THE COURT: All right.

MR. KELBERG: Great.

MR. SHAPIRO: These are photographs apparently taken June 16th, 1994, in Chicago that we have not received yesterday except in Xerox form.

MR. KELBERG: They have the Xerox. I will request that a set be prepared.

THE COURT: All right. We will stand in recess until 1:30. Thank you, counsel.

(At 11:44 A.M. the noon recess was taken until 1:30 P.M. of the same day.)

LOS ANGELES, CALIFORNIA; TUESDAY, AUGUST 8, 1995 1:30 P.M.

Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: Back on the record in the Simpson matter. All parties are again present. The jury is not present. Counsel, one of the motions that we have on calendar--actually we have two for today. We have the Stockdale motion and the IAD motion. And previously, when this matter was submitted to the Court, I advised counsel and Mr. Simpson at the time that my wife was a captain with the Los Angeles Police Department at the time, and I recollect that she was in Internal Affairs when this case was assigned to me back in July of last year. At that time, she was the Captain II there and the chief investigator. When this matter of leaks came up, the Los Angeles Police Department conducted its investigation, and essentially Captain York was not involved in that investigation. This issue has arisen again, and since that time, my wife has been promoted to the Captain III of Internal Affairs. And I feel that since this particular motion involves files that are there, investigation that was conducted by the Internal Affairs Division of the Los Angeles Police Department, I think it's more appropriate that another Judge hear this motion. And I am comfortable with the fact that my wife has had no involvement in that investigation from start to finish and I don't feel that there is any actual conflict involved. However, I think the appearance is such that I would feel more comfortable and I think the parties would feel more comfortable if another magistrate heard this particular motion. And I discussed this informally with counsel off the record, advised them of my inclination that I was going to transfer this to another Judge, to Department 100 to the supervising Judge, Judge Bascue, for his assignment so that this can be heard by a magistrate who has no spousal connection to any of the parties involved here.

However, I've also informally discussed with the parties that in the event that the magistrate hearing the motion does grant an in camera hearing, that because this Court is more familiar with the issues involved, that this Court would then, with the agreement of the parties and stipulation of the Defendant, agree to do the in camera hearing if that comes to pass. Is that your understanding, Mr. Darden?

MR. DARDEN: That is, your Honor, and that's acceptable.

THE COURT: All right. Is that your understanding, Mr. Walsh?

MR. WALSH: Certainly, your Honor.

THE COURT: Is that your understanding, Mr. Cochran?

MR. COCHRAN: Yes, it is, your Honor, and I've conferred with Mr. Simpson regarding that.

THE COURT: All right. Is this arrangement agreeable to you, Mr. Simpson?

THE DEFENDANT: Yes, it is.

THE COURT: All right.

MR. COCHRAN: And I should point out, Mr. Simpson does want to be present at that hearing when it's argued, your Honor.

THE COURT: Yes.

MR. COCHRAN: And I have suggested to the Court, if another magistrate wanted to come here, that would be fine. But we'll go wherever.

THE COURT: Well, let me ask. You know, it's a matter of judicial protocol. I will invite Department 100 to make the assignment. Is it agreeable with you that I contact Judge Bascue and ask him to make the assignment directly?

MR. COCHRAN: Yes. And then we'll--and further, I'll make a specific request, your Honor, just from the standpoint of logistics and we're set up here, we would like Mr. Simpson to be present for this hearing, and I would--you have no concerns about protocol if the new magistrate would come here.

THE COURT: Just as long as they don't change all the adjustments on my chair.

MR. COCHRAN: On your chair or move your pens or your--I understand, your Honor. If you can work those things out, we'll be more than happy to remain here and wait for the other magistrate. And we could then, of course, in the course of argument explain that if the magistrate believes that there should be an in camera proceeding, we would stipulate, both sides, that your Honor would conduct that because of your familiarity with the facts.

THE COURT: All right. Then I'll take a brief recess. Then I'll contact Judge Bascue, ask him if he will assign the Judge directly to hear the matter here. All right. All right. We'll take 5 minutes.

(Recess.)

THE COURT: All right. Back on the record in the Simpson matter. Counsel, I've consulted with Judge Bascue in Department 100. He has agreed that for logistical reasons, that he will assign the matter to Department 123, which would be heard in Department 103 forthwith. So as soon as Judge Reid arrives, the matter will be heard. So I will excuse myself, and Judge Reid will take the bench to hear the motion. All right. We'll stand in recess until Judge Reid arrives.

MR. DARDEN: Judge, can we approach?

THE COURT: Sure.

(A conference was held at the bench, not reported.)

LOS ANGELES, CALIFORNIA; TUESDAY, AUGUST 8, 1995 1:55 P.M.

Department no. 103 Hon. John Reid, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Good afternoon.

MR. COCHRAN: Good afternoon.

MR. DARDEN: Good afternoon.

THE COURT: Needless to say, I am not at all familiar with the proceedings which I will now preside over, but for I have read and considered a Defendant's motion for statements given a witness in the course of an Internal Affairs investigation filed August 1st and a motion by the city attorney on behalf of the Los Angeles Police Department to quash Defendant's motion--strike that--to quash the Defendant's subpoena duces tecum, which I have not seen. So other than that, I have read and considered nothing. Who on behalf of Mr. Simpson will be addressing the issues before this Judge?

MR. UELMEN: Gerald Uelmen, your Honor.

THE COURT: All right. Thank you, Mr. Uelmen. And on behalf of the police department?

MR. WALSH: Arthur Walsh, assistant city attorney, your Honor. Would you like me to give the Court a copy of the subpoena duces tecum at this point?

THE COURT: That would be helpful. And as that's being given to me, Mr. Uelmen, in your motion filed August the 1st, it appears not to be in response to the SDT, but rather a request for discovery?

MR. UELMEN: Yes, your Honor. I believe the subpoena has actually been mooted. We believe we're entitled to this in the course of discovery in this case and that a subpoena is not actually necessary since what we are proceeding with is not a pitchess motion, and I'll explain that at greater length, your Honor.

THE COURT: No. I agree with you. That was my interpretation.

MR. UELMEN: I think it's important at the outset that we get past any question of label. This is not a pitchess motion. We are not seeking the personnel records of any specified police officer to show previous citizen complaints against that officer. What we are seeking is an investigative report that was done in connection with this very case to investigate issues raised by this case, and we believe that when witnesses are going to be called in this case to testify about those same events, that we are entitled as a matter of course to the statements that they made in the course of that investigation. I think the closest analogy that we have seen previously in this case is the investigation that was conducted on behalf of the police commission by Detective Mulldorfer with respect to the events that took place at Viertel's garage with regard to the Bronco. Here we had a separate internal investigation by the police department in which Detective Mulldorfer went to the garage and interviewed a number of witnesses who became material witnesses in this very case with respect to the same events, with respect to the chain of custody of the Bronco automobile. And, of course, that report was at that time produced and made available and the previous statements that those witnesses had made to Detective Mulldorfer were then available to both sides to confront and cross-examine and examine these witnesses with respect to those same events. Here, it's really just a matter of fortuity that this investigation was assigned to Internal Affairs. And simply by the administrative machinery of putting Internal Affairs in charge of this investigation, that does not insulate it from any discovery in a criminal case. The privilege that's created by penal code section 832.5 with respect to personnel records is a qualified privilege for personnel records. It is not a qualified privilege for Internal Affairs investigations. And if those Internal Affairs investigations relate directly to the ongoing disputes raised in the context of a criminal trial, we believe that those reports and the interviews of the witnesses involved should be available to both sides so that they can properly litigate the issues that are raised in this case. Now, this is not a fishing expedition. We're not looking for an Internal Affairs report so that we can fish through it and see whatever we might find that may be helpful, but--

THE COURT: Let me stop you for my clarity. Your request is for statements made during this investigation.

MR. UELMEN: Precisely.

THE COURT: It is limited merely to statements of potential witnesses or witnesses that will testify in this case.

MR. UELMEN: That is correct. We are not seeking conclusions. We are not seeking recommendations. We are not seeking any personnel action recommended with respect to any particular officer. We are looking for the statements of witnesses because those witnesses are material in this trial with respect to the same issues that were being investigated by Internal Affairs. We're talking about witnesses who will testify in this trial before the jury; notably, Michele Kestler, who was the director of the laboratory, commander--then commander, now deputy chief, David Gascon. And their testimony will relate directly to the subject of the investigation by Internal Affairs, that is leaks to the press. And also Mr. Matheson. So we believe that these statements--

THE COURT: Who is Mr. Matheson?

MR. UELMEN: Mr. Matheson is a deputy director of the laboratory. And all of these people were, of course, the focus of the Internal Affairs investigation into where the leaks were coming from of testing results in the course of the investigation and preparation for trial of this case. The issue is also relevant in the context of the--oh, I'm sorry. I've just been reminded that Erin Reilly and Collin Yamauchi, who are also employees of the laboratory, may have been interviewed in the course of this investigation. This investigation is also relevant in the context of the pending matter before Judge Ito with respect to piercing the shield law, because one of the factors that the Court is required to look at in determining whether the newsmen's or newsperson's shield law should be pierced, is whether there are alternative sources available to get the same information. And to the extent that these witnesses were interviewed with respect to their knowledge of leaks, we do have the exhaustion of an alternative source which may be a very compelling argument in favor of piercing the newsperson's shield law because now we are left with only the newspersons as the source of information about where these leaks came from. And finally, they're relevant in terms of any potential exculpatory material. Because the question of leaks has become a substantive issue in the context of this trial, we believe that any information that reveals the possibility of leaks within the Los Angeles Police Department may be exculpatory evidence that the Defendant is entitled to under Brady versus Maryland. So for all of these reasons, we believe--

THE COURT: Well, what type of--I mean, unless you have some theory of an exculpatory statement, then in that sense, it would be a fishing expedition. What are you looking specifically for?

MR. UELMEN: We are looking specifically for information as to who had access to the information that was leaked, when they had it. We believe that the investigation may disclose a chain of events that points an inference or a circumstantial suggestion with respect to particular individuals who may have been the source of the leak. And we believe that that would come within the Brady rule in terms of being potentially exculpatory evidence to show that in fact, these leaks did come from the Los Angeles Police Department.

Now, for all of these reasons, the report we believe is relevant to issues that we are litigating in this trial. But we're not even asking that the report simply be turned over to the Defense. All that we're asking is that Judge Ito be allowed to conduct an in camera inspection of the report to see whether there is relevant and material evidence that should be made available to the Defense contained within that report. And under section 915 of the evidence code, whatever privileged information may be in that report can continue to be protected. And again, I emphasize that we're not asking for privileged personnel files. We are asking for actual witness statements that are a result of this investigation. Even the shield of personnel records, however, is not an impenetrable shield. Like any other shield--

THE COURT: But we're not talking about personnel records.

MR. UELMEN: Well, we're not. We're not.

THE COURT: I don't want to get off into something that is not pertaining to your request.

MR. UELMEN: All I want to emphasize, your Honor, is that the bottom line here is the Defendant's right to a fair trial and accommodating that right while still respecting whatever privileges may pertain with respect to any of this information. And we believe that this issue is such an important issue to be litigated in this trial, that to withhold from the Defense an investigation conducted by the Los Angeles Police Department into the very allegations and issues that we are litigating involving interviews of the very same witnesses whom we are calling as witnesses in this trial gives us a right of access to those interviews. Could I have just a moment?

THE COURT: Yes.

(Discussion held off the record between Defense counsel.)

MR. UELMEN: I realize I have been making the assumption that your Honor is fully familiar with the relevance and materiality of the leaking issue in this case and perhaps I should take a moment to make sure that your Honor is aware of the context in which this issue arises.

THE COURT: Okay. Be somewhat brief. I believe that I am. I understand what you're asking for and the reasons you're asking for it. My concern is, apparently you interchange the report, assuming there is a report, with any statements made by one of these four or five witnesses or potential witnesses. And my concern is or at least my understanding of your request is only previous statements, if they were made by one of these five pe